Law as a Barrier, Law as a Bridge? On “Humanitarian Visas” and the Obligations of Distant States

One of the key questions arising in the context of states’ obligations to distant foreigners is the question of immigration: Do states have an unfettered discretion with respect to admitting asylum seekers or do they owe them certain obligations?

Two doctrines have traditionally operated to serve as legal barriers to those knocking on the state’s gates. The first doctrine emerged toward the end of the nineteenth century, when democracies began to limit the inflow of foreigners seeking employment or refuge. The barrier was founded on the concept of state sovereignty and the primacy of positive law. These were two grounds that conceptualized states as legal islands in the global ocean. This doctrine was articulated by the US Supreme Court in the so-called Chinese Exclusion Case of Chae Chan Ping v. United States (1889), when explaining why the court will not review an act of Congress that had prohibited Chinese laborers from re-entering the United States refused to review the law:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence.

Immigration was seen as invasion and hence the regulation of immigration was akin to declaring war:

[…]To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determinations, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers.

Similarly, the Privy Council concluded in Attorney General for the Dominion of Canada v Cain, [1906] AC 542, that

[o]ne of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.

As Colin Grey pointed out, the use of the term “especially” suggests that “what is claimed is a discretion whose exercise will be legitimate even absent the potential justifications mentioned.”

The second legal barrier is grounded in human rights law that extends the state duties to all those found “within its jurisdiction” but only to them. Indeed, the human rights revolution turned state sovereignty on its head in the sense that individual rights became the source of the state’s sovereignty rather than its consequence. But this has not helped the foreigner because the turn to human rights stopped at the border of the state: states were required to respect human rights to those “within their jurisdiction.” Accordingly, those seeking entry from outside the gate were deemed excluded from the scope of the state’s human rights responsibility. Refugees from Aleppo had to risk their lives through the rough waves of the Mediterranean and illegally cross borders to be able to knock on Europe’s door and demand recognition of their right to life.

But a serious look at the idea of human rights will reveal that if these rights precede state sovereignty, they must precede the sovereignty of all states, and therefore all states must consider the human rights of foreigners when they make decisions that affect them. Why does the Syrian refugee have a right to apply for asylum only if she survives the dangerous journey?

This question came to the fore in March 2017 when the CJEU was called upon to decide upon a question referred to it from a Belgian court: A family of Syrian refugees had managed to reach the Belgian consulate in Beirut and to apply for special humanitarian visas available under an EU directive. Was Belgium required to issue such a visa? Obviously, the family wasn’t present on Belgian soil; it was not physically within Belgium’s “jurisdiction.” But the administrative decision to deny their request was made in Belgium. Would the concept of “everyone within the jurisdiction,” embedded in human rights law, be extended to those who are subject to the state’s decisional power despite the geographical distance?

Advocate General Mengozzi delivered an impassioned opinion supporting the family’s request. He put forward two arguments. The first argument related to the territorial scope of Belgium’s obligations and the second to the content of the obligation. First, he argued, “a Member State implements EU law when it adopts a decision in relation to an application for a visa with limited territorial validity, which therefore requires the Member State to ensure that the rights guaranteed by the Charter are respected.” In other words, what matters is where the decision is made rather than where was the petitioner at the time of deciding.

Second, Mengozzi continued, “respect to those rights … implies the existence of a positive obligation on the part of the Member States, which must require them to issue a visa with limited territorial validity where there are substantial grounds to believe that the refusal to issue that document will have the direct consequence of exposing persons seeking international protection to torture or inhuman or degrading treatment.”

In other words, the law, specifically human rights law and EU law, become according to this view a bridge that offers migrants safe passage across the Mediterranean if they meet certain (quite strict!) conditions. AG Mengozzi implored the court:

It is … the refusal to recognise a legal access route to the right to international protection on the territory of the Member States […] which seems to me to be particularly worrying, in the light, inter alia, of the humanitarian values and respect for human rights on which European construction is founded. Need it be recalled that, as Articles 2 and 3 of the EU Treaty state respectively, the Union ‘is founded on the values of respect for human dignity … and respect for human rights’ and its ‘aim is to promote … its values’, including in its relations with the wider world?

Mengozzi’s view was not alone in this apporoach. In January 2016, in the case of ZAT, the UK Upper Tribunal of the Immigration and Asylum Chamber had found that four Syrian refugees, living in the squalor of “the jungle” as the refugee camp in Calais was known, had had the right to have their petition to family unification in the UK heard before a British court. The Tribunal recognized their “constitutional entitlement to seek judicial adjudication of the rights which they assert and the corresponding duties to which they contend the United Kingdom Government is subject.” While acknowledging that “one of the oldest powers of a sovereign state [is] to decide whether any, and if so which, non-nationals shall be permitted to enter its territory and to regulate and enforce the terms on which they may do so,” the tribunal nevertheless subjected that old power to a strict proportionality analysis.

But the Grand Chamber rejected Mengozzi’s analysis. While the rejection was based on formal grounds, namely the specific conditions attached to the EU humanitarian visa regime, the court did reiterate a vision of law as barrier rather than a bridge:

It is also important to note that to [accept the request] would mean that Member States are required, on the basis of the Visa Code, de facto to allow third-country nationals to submit applications for international protection to the representations of Member States that are within the territory of a third country. … [I]t is apparent … that [the EU] directive applies to applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, but not to requests for diplomatic or territorial asylum submitted to the representations of Member States.

Stated otherwise, individuals will become entitled to their human rights only if they prove their desperation, skills and resilience. If they survive the journey.

Of course, if the human rights of others merit the respect of all, a key question is the allocation of responsibilities among the potential host countries. This challenge calls for coordination among similarly situated states. The UK immigration tribunal envisioned coordination between France and the UK based on EU law. AG Mengozzi also relied on the common EU policy as one that would ensure coordination. The CJEU, however, curtailed such coordination when it interpreted the EU directive as inapplicable and determined that the extension of humanitarian visas was subject to each Member’s domestic law.

When the Privy Council in Canada v Cain invoked recognized “the supreme power in every State … to refuse to permit an alien to enter that State” it invoked Vattel’s law of Nations. But Vattel hardly supported the court’s assertion of “supreme power [to] annex what conditions it pleases to the permission to enter.” As a matter of fact, Vattel’s view is more in line with Mengozzi’s and the UK immigration tribunal’s. The same sections cited by Lord Atkinson emphasize just the opposite point.

Because “property could not be introduced to the prejudice of the right acquired by every human creature, of not being absolutely deprived of such things as are necessary,” Vattel suggested, “no nation can, without good reasons, refuse even a perpetual residence to a man driven from his country.” The state “has a right, and is even obliged, to follow… the suggestions of prudence. But this prudence should be free from unnecessary suspicion and jealousy; it should not be carried so far as to refuse a retreat to the unfortunate, for slight reasons, or on groundless and frivolous fears.” (in Book I § 231).

Vattel acknowledges the complexity of the problem, and the tradeoffs between ensuring the rights and welfare of those inside and those of the outsiders. But for Vattel these complex problems require nuanced rather than flat responses:

[E]very man has a right to dwell somewhere upon earth. […] If a people are driven from the place of their abode, they have a right to seek a retreat: the nation to which they make application ought then to grant them a place of habitation, at least for a time, if she has not very important reasons for a refusal. But, if the country inhabited by this nation is scarcely sufficient for herself, she is under no obligation to allow a band of foreigners to settle in it for ever: she may ever dismiss them at once, if it be not convenient to her to grant them a permanent settlement. As they have the resource of seeking an establishment elsewhere, they cannot claim any authority from the right of necessity, to stay in spite of the owners of the country. But it is necessary, in short, that these fugitives should find a retreat; and, if every body rejects them, they will be justifiable in making a settlement in the first country where they find land enough for themselves, without depriving the inhabitants of what is sufficient for them. […] (Book II: § 125).

For Vattel, law is a bridge. There are gatekeepers on the bridge and they are entitled to strictly limit its crossing. But the asylum seeker need not risk her life as a prerequisite for the gatekeepers to exercise their duty to decide whether to allow entry.